Citation Nr: 0800728
Decision Date: 01/08/08 Archive Date: 01/22/08
DOCKET NO. 03-31 530 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for left ear hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for arthritis of the
right knee.
4. Entitlement to service connection for arthritis of the
lower back.
5. Entitlement to service connection for a heart condition.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from March 1960 to July
1963.
This appeal arises before the Board of Veterans' Appeals
(Board) from a rating decision rendered in March 2003 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, in which service connection for
right and left ear hearing loss, tinnitus, arthritis of
multiple joints, a heart condition, residuals of a left knee
injury, post-traumatic stress disorder (PTSD), and a
disability related to asbestos exposure was denied.
The veteran testified before the undersigned Veterans Law
Judge in November 2004. A transcript of the hearing is
associated with the claims file.
In January 2005, the Board issued a decision and remand. The
issues of service connection for residuals of a left knee
injury, PTSD, and a disability related to asbestos exposure
were denied. The issues of service connection for right and
left ear hearing loss and tinnitus, arthritis of multiple
joints, and a heart condition were remanded for further
development.
During the pendency of this appeal, in an October 2006 rating
decision, the RO granted the veteran's claim for right ear
hearing loss, assigning a zero percent evaluation effective
in October 2002. The veteran has not appealed the evaluation
or the effective date assigned. As the grant of service
connection for right ear hearing loss is a full grant of the
benefit sought on appeal, this issue is no longer before the
Board.
Concerning the claim for arthritis of multiple joints,
service medical records reflect the veteran injured his right
knee and back in service, and the veteran testified in
November 2004 that most of the pain that he believed to be
arthritis was in his back and right knee. In March 2005, the
veteran underwent additional VA examination, at which time he
stated his main complaints were of back pain, although he had
sustained injury to his knees in service. The examiner found
clinical evidence of degenerative changes in the lower back.
Thus, the issues have been recharacterized as service
connection for arthritis of the right knee and lower back.
As above noted, service connection for residuals of left knee
injury was denied by the Board's January 2005 decision.
The issues of service connection for arthritis of the right
knee and arthritis of the lower back, and for a heart
condition addressed in the REMAND portion of the decision
below are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A preponderance of the evidence is against a finding that
left ear hearing loss is the result of active service.
2. A preponderance of the evidence is against a finding that
tinnitus is the result of active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for left ear hearing
loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§
3.303, 3.306, 3.307, 3.309, 3.385 (2007).
2. The criteria for service connection for tinnitus have not
been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137,
5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a). VA must request that the
claimant provide any evidence in the claimant's possession
that pertains to a claim. 38 C.F.R. § 3.159.
The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi, 18
Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The RO provided the appellant pre-adjudication notice
concerning the issue of service connection in a November 2002
letter. The notification substantially complied with the
requirements of Quartuccio v. Principi, 16 Vet. App. 183
(2002), identifying the evidence necessary to substantiate a
claim and the relative duties of VA and the claimant to
obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112
(2004), requesting the claimant to provide evidence in his or
her possession that pertains to the claims.
The notification did not advise the veteran of the laws
regarding degrees of disability or effective dates for any
grant of service connection. However, no new disability
rating or effective date for award of benefits will be
assigned as these claims are denied. Accordingly, any defect
with respect to that aspect of the notice requirement is
rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
VA has obtained service medical records, assisted the veteran
in obtaining evidence, afforded the veteran physical
examinations, obtained medical opinions as to the etiology of
his claimed hearing disabilities, and afforded the veteran
the opportunity to give testimony before the Board which he
did in November 2004. All known and available records
relevant to the issues on appeal have been obtained and
associated with the veteran's claims file; and the veteran
has not contended otherwise.
VA has substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claim at this time.
II. Service Connection
The veteran seeks entitlement to service connection for left
ear hearing loss and tinnitus.
Service connection may be established for disability
resulting from injury or disease incurred in service. 38
U.S.C.A. § 1110. Service connection connotes many factors,
but basically, it means that the facts, as shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service. A
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
in service. See Pond v. West, 12 Vet. App. 341 (1999);
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Continuous service for 90 days or more during a period of
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as hearing
loss or tinnitus to a degree of 10 percent within one year
from the date of termination of such service, establishes a
rebuttable presumption that the disease was incurred in
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§
3.307, 3.309.
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A
veteran is entitled to the benefit of the doubt when there is
an approximate balance of positive and negative evidence. See
also, 38 C.F.R. § 3.102. When a veteran seeks benefits and
the evidence is in relative equipoise, the veteran prevails.
See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The
preponderance of the evidence must be against the claim for
benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518
(1996).
Applicable regulations provide that impaired hearing shall be
considered a disability when the auditory thresholds in any
of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz
are 40 decibels or greater; the thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores are 94 percent or less. 38 C.F.R. §
3.385.
In March 2005, the veteran underwent VA audiological
examination, at which time right and left hearing loss were
clinically diagnosed. Service connection for right ear
hearing loss has been granted. The following audiometric
results in, pure tone thresholds, were obtained for the left
ear:
March
2005
HERTZ
500
1000
2000
3000
4000
LEFT
25
35
40
60
80
Average pure tone threshold was calculated at 54 decibels in
the left ear. Speech audiometry was measured at 94 percent
for the left ear. The audiologist diagnosed mild to severe
sensorineural hearing loss at 250 to 8000 Herz on the left.
This meets the criteria for hearing impairment under
38 C.F.R. § 3.385.
The veteran did not report head noise on his history
questionnaire in preparation for the examination and denied
having the symptom during the examination interview.
Service medical records reveal that the veteran's hearing was
measured at 15 of 15 whispered voice in the right and left
ear prior to entry into active service. At discharge from
active service, his hearing was measured as follows:
June
1963
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
--
40
LEFT
15
10
10
--
10
Service personnel records show that the veteran's military
occupational specialty (MOS) was as a light weapons
infantryman and a rifleman, and that he completed airborne
training and was awarded the Parachutists' Badge. He did not
have any service overseas.
In the examination report, the examiner noted the veteran's
reported history of exposure to noise during active service
from aircraft and weapons. The veteran did not report having
a problem with his hearing at discharge from active service.
He denied post-service occupational noise exposure, but
reported a history of employment as a traveling salesman from
1964 to 1980, averaging 1000 miles per week by car.
Thereafter, he worked as a caterer from 1980 to 1995. He
reported no familiar history of hearing loss and recreational
noise exposure from a few years of hunting with a rifle.
The examiner observed that he had reviewed the veteran's
claims file, and noted that while service medical records
show high frequency hearing loss in the right ear at the time
of discharge, no such finding was made concerning the left
ear.
Because hearing loss was not noted in the left ear during
active service or at discharge, the examiner opined that the
diagnosed left ear hearing loss was not as likely as not the
result of active service. Rather, the examiner opined that
the left ear hearing loss was more likely than not the result
of post-service noise exposure, age, and other factors. The
examiner explained that the veteran's post-service extensive
travel by car put the veteran at greater risk for hearing
loss, noting that over the road truck drivers acquire hearing
loss faster than the general population.
Concerning the claimed tinnitus, the examiner stated it was
with medical certainty that the complaint of subjective
tinnitus was not a consequence of acoustic trauma during
active service. The examiner explained that the veteran
denied having tinnitus during the interview and did not
report it on his history questionnaire. In addition, the
examiner observed that review of the VA treatment records
showed no complaints of symptoms of tinnitus, or a diagnosis
of the condition, throughout.
In his November 2004 hearing, the veteran testified that he
did not experience ringing in his ears all the time and he
could not remember if he experienced ringing in his ears
during active service. However, he attributed his difficulty
with hearing to exposure to airplane noise when making jumps,
and using a 3.5 rocket launcher on the firing range.
The examiner's medical opinions, in the present case, are
probative because the examiner reviewed the claims file, to
include the service medical records, service personnel
records, and treatment records. Moreover, the veteran's
statements during VA examination are consistent with his
testimony and with the treatment records. Because the
examiner's opinion is based on a thorough review of the
record and medical examination of the veteran, to include
clinical findings, the March 2005 VA examination is
probative. See Green v. Derwinski, 1 Vet. App. 121, 124
(1991); LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
The medical evidence presents no opinions or findings that
the veteran manifests left ear hearing loss and tinnitus that
is the result of the veteran's active service.
As the medical evidence does not support a finding that the
veteran's clinically diagnosed left ear hearing loss and
subjectively diagnosed tinnitus are the etiological result of
the veteran's active service, the preponderance of the
evidence is against service connection for left ear hearing
loss and tinnitus. See Pond, supra, and Hickson, supra.
Where as here, the determinative issue involves a medical
diagnosis and medical opinion of etiology, competent medical
evidence is required to support the claim. The veteran is not
competent to offer an opinion as to a medical diagnosis or to
causation, consequently his statements to the extent that he
has left ear hearing loss and tinnitus that are related to
active service cannot constitute medical evidence. Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993).
The preponderance of the evidence is against the claims for
service connection for left ear hearing loss and tinnitus.
The benefit-of- the-doubt standard of proof does not apply.
38 U.S.C.A. § 5107(b) and service connection is not
warranted.
ORDER
Service connection for left ear hearing loss is denied.
Service connection for tinnitus is denied.
REMAND
Concerning the claims for service connection for arthritis of
the right knee and back, service medical records reflect the
veteran injured his right knee and back during active
service. Moreover, the record establishes that the veteran
was a paratrooper.
VA examination was accorded the veteran in March 2005,
pursuant to the January 2005 Board remand, to determine the
nature, extent, and etiology of any diagnosed arthritis. The
examination report reveals clinical findings of minimal
degenerative changes in the lower back, and that results of
X-rays for the right knee were pending. These X-ray records
have not been associated with the claims file. The examiner
opined that neither back nor right knee pathology was the
etiological result of active service. However, the examiner
did not provide any rationale for his opinion. The
examination report must therefore be returned to the examiner
so that the examiner may provide the rationale for his
medical expert opinion. See Stegall v. West, 11 Vet. App.
268, 270-71 (1998).
Concerning the claim for service connection for a heart
condition, medical treatment records obtained from the Social
Security Administration (SSA) and VA reflect that the veteran
was treated for coronary artery disease in 2001 with a
quadruple bypass graft. However, these records also show
that clinical tests, including electrocardiogram, reveals
findings of an old infarct in the inferior leads, of an
indeterminate age. In addition, the veteran's treating VA
physician indicated that the veteran has had longstanding
hypertension. The medical records do not show when the onset
of this condition was.
The veteran testified that he experienced symptoms during a
jump on active service that he believed were a heart attack.
The veteran has not been accorded a VA examination to
determine the nature, extent, and etiology of his heart
condition. Under the present circumstances, this should be
done. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Ensure that all identified private
and VA medical treatment records are
obtained. Document negative responses,
and inform the veteran so that he may
make attempts to procure the records on
his own.
2. Return the March 2005 VA examination
for joints to the examiner who conducted
the examination and request that the
examiner provide a complete rational for
his opinions.
If the examiner cannot be located, or if
it is determined that the veteran should
undergo further examination for his
claimed arthritis of the right knee and
back, schedule the veteran for medical
examination by an appropriate medical
professional to determine the nature,
extent, and etiology of his claimed right
knee and back disabilities. All
indicated tests and studies should be
performed. The claims folder and a copy
of this remand must be provided to the
examiner in conjunction with the
examination.
The examiner should provide an opinion as
to whether it is at least as likely as
not that any diagnosed right knee and
back disabilities had their onset during
the veteran's active service or are in
any way related to his active service,
including the inservice injuries he
sustained or any other incident therein.
3. Schedule the veteran for medical
examination by an appropriate medical
professional to determine the nature,
extent, and etiology of his claimed heart
condition. All indicated tests and
studies should be performed. The claims
folder and a copy of this remand must be
provided to the examiner in conjunction
with the examination.
The examiner should provide an opinion as
to whether it is at least as likely as
not that any diagnosed heart condition,
including hypertension, had its onset
during the veteran's active service or is
in any way related to his active service.
4. After undertaking any other
development deemed essential in addition
to that specified above, readjudicate the
veteran's claims for service connection
for arthritis of the right knee,
arthritis of the lower back, and a heart
condition, with application of all
appropriate laws and regulations, and
consideration of any additional
information obtained as a result of this
remand. If any decision remains adverse
to the veteran, issue a supplemental
statement of the case and afford a
responsible period of time to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is so informed. The veteran has the right to
submit additional evidence and argument on the matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999). The veteran is advised that failure to appear for VA
examinations could result in the denial of his claims. 38
C.F.R. § 3.655 (2007). See Connolly v. Derwinski, 1 Vet.
App. 566, 569 (1991). The Board intimates no opinion as to
the ultimate outcome of this case.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs